TITLE: B-311137, National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., April 25, 2008
BNUMBER: B-311137
DATE: April 25, 2008
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B-311137, National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., April 25, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: National Conference Services, Inc. and Direct Marketing
Productions, Inc. d/b/a Technology Forums, Inc.
File: B-311137
Date: April 25, 2008
Antonio R. Franco, Esq., Jonathan T. Williams, Esq., and Gunjan R. Talati,
Esq., Piliero Mazza, PLLC, for the protester.
Stephanie A. Kreis, Esq., and William Mayers, Esq., Defense Information
System Agency, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest alleging that an agency unreasonably canceled a request for
quotations for conference planning services after the receipt of proposals
is denied where: (1) the agency decided to continue its co-sponsorship of
an annual conference with a recognized scientific, technical, educational
or professional organization, as allowed by the Department of Defense's
Joint Ethics Regulation; (2) the agency officials involved have explained
that they were using the procurement system in good faith, and were not
soliciting contractors for the purpose of bringing pressure on their
previous conference co-sponsor; and (3) the agency officials involved
concluded that a continued partnership with the previous conference
co-sponsor was in the government's best interest.
DECISION
National Conference Services, Inc. and Direct Marketing Productions, Inc.
d/b/a Technology Forums, Inc. (TFI) protests the cancellation of request
for quotations (RFQ) No. 254367, issued by the Defense Information System
Agency (DISA) for conference meeting, event and trade show support and
services for the DISA Customer Partnership Conference. The protester
contends that the decision to cancel the RFQ was merely a pretext to avoid
competition.
We deny the protest.
DISA has been hosting its Customer Partnership Conference for the past 5
years, with the Air Force Communications and Electronic Association
(AFCEA) serving as its co-sponsor. AFCEA is an "international non-profit
association serving the military, government, industry and academia as a
forum for advancing professional knowledge and relationships in the fields
of communications IT intelligence and global security." Contracting
Officer's (CO) Statement at 1.
After using the co-sponsorship arrangement for the 5 prior years, the
agency decided to issue a solicitation for a "no cost" conference support
services contract for the 2009, 2010, and 2011 conferences. On November
16, 2007, DISA issued the RFQ seeking discounted General Service
Administration (GSA) schedule pricing. The RFQ required vendors to provide
a full range of conference planning services, including the planning,
marketing, registration, set-up, on-site administration, coordination and
management of all logistical components of the conference. RFQ attach. 1,
at 2.
The RFQ contemplated the award of a fixed-price contract and announced
that quotes would be assessed under four evaluation factors:
technical/management approach, past performance, other non-cost factors,
and cost/price. RFQ Attach. 2. The RFQ advised that the factors of
technical/management would be approximately equal in value, and that other
non-cost factors would be the least important factor. The RFP also
indicated that the non-cost factors would be significantly more important
than the cost/price factor, and that award would be made to the quotation
offering the best value to the government. Id.
The agency received quotations from eight small business concerns by the
December 3 due date, but the quotations were never forwarded to the
evaluation team. On the same day, DISA's Director of Strategic Planning
and Information--the senior agency official responsible for this
conference--decided to take another course. In a message to agency staff
involved in the ongoing procurement, he announced:
I met with AFCEA this noon. They made [the] required [] concessions. I
want to stay with them for conference support. So, I do not want us to
make an award for conference support from the RFP [sic] responses.
Thanks[.]
Agency Report (AR), Tab 13. As a result, the agency cancelled the RFQ the
next day, December 4, on the basis that the agency had determined that it
was in the best interest of the government to continue its relationship
with AFCEA.
TFI protests the cancellation of the RFQ and maintains that the agency's
decision to cancel the solicitation was a pretext to avoid making a
competitive award decision. The protester argues that the decision to
cancel the RFQ was a violation of the Competition in Contracting Act
(CICA) and the Department of Defense (DOD) Joint Ethics Regulations (JER),
DOD 5500.7-R, which the protester argues requires DOD components
sponsoring a conference to use normal acquisition procedures to procure
any assistance they might need. In addition, TFI argues that the agency
apparently engaged the procurement process with no intention of awarding a
contract, but only for the purpose of gaining concessions from AFCEA. In
TFI's view, this constitutes improper agency action, and it urges our
Office to sustain its challenge to the cancellation decision.
A contracting agency need only establish a reasonable basis to support a
decision to cancel an RFQ; in this regard, so long as there is a
reasonable basis for doing so, an agency may cancel a RFQ no matter when
the information precipitating the cancellation first arises, even if it is
not until quotations have been submitted and evaluated. Quality Tech.,
Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2-3; DataTrak
Consulting, Inc., B-292502 et al., Sept. 26, 2003, 2003 CPD para. 169 at
5.
DISA maintains that it canceled the RFQ to co-sponsor the conference with
AFCEA because it was in the best interest of the government to continue
its relationship with AFCEA. DISA explains that the purpose of the
conference is to promote a technical exchange between government and
industry, to inform the government of industry initiatives and their
possible relevance to the DISA mission, and to discuss with industry the
agency's plans and concerns regarding its existing programs. DISA contends
that its relationship with AFCEA is beneficial because the functions of
the AFCEA organization are directly related to DISA's mission and because
the large AFCEA membership includes both corporations and individuals that
have an interest in the agency's mission.
DISA also states that AFCEA can bring a level of technical expertise to
the planning of the conference that a support contractor cannot provide.
Under the RFQ, a vendor would help select a conference site and hotel, and
would provide conference management support necessary to implement the
conference. In contrast, the Memorandum of Agreement (MOA) between DISA
and AFCEA anticipates that AFCEA will be involved in substantive aspects
of the conferences, to include development of the conference program, as
well as matters of scope, theme, agenda and speakers. As a result, DISA
argues that co-sponsorship of the conference with AFCEA enhances the
quality of the conference for both government and non-government
attendees. Finally, the agency maintains that the JER provides the agency
with authority to enter into co-sponsorship arrangements for conferences
with recognized scientific, technical, educational or professional
organizations.
We have reviewed the record here and we see no basis to question the
agency's decision that its conference needs would be better satisfied by
continuing its co-sponsor relationship with AFCEA. Moreover, we note that
the JER anticipates this kind of relationship and recognizes that such
co-sponsors can add to the substance of the event and also provide
substantial logistical support. JER, DOD 5500.7-R, sect. 3-206. As DISA
claims, the JER allows a DOD component to co-sponsor a conference, seminar
or similar event with a non-Federal entity when five criteria are met,
including the requirement that:
(3) The non-Federal entity is a recognized scientific, technical,
educational, or professional organization approved for this purpose by
the DoD Component DAEO, giving due consideration to the prohibition
against giving preferential treatment to non-Federal entity in 5 C.F.R.
2635.101(b)(8) in subsection 2-100 of this Regulation (reference(h));
JER sect. 3-206(b).
In response to the agency's claim that it has authority to co-sponsor
conferences with entities like AFCEA, the protester draws a distinction
between having the claimed authority under the JER to co-sponsor a
conference with a scientific, technical, educational or professional
organization, and having a rational basis to cancel a procurement already
underway. We appreciate the distinction. The agency's actions
here--essentially encouraging private sector entities to incur the
significant expense of preparing proposals,[1] while continuing to assess
the viability of using a different available approach--is unfair to
businesses and a bad procurement practice. Simply put, the government
should not be asking private sector offerors to prepare and submit
detailed proposals for work the agency has not yet decided to obtain using
a procurement.
In response to the protester's comments, we asked the agency to prepare a
supplemental report addressing in greater detail the decision to use, and
then abandon, the procurement process. In this regard, we have reviewed
this record, including the declarations of the agency personnel
responsible for these actions, and we find the explanations set forth
therein to be credible and reasonable. Specifically, the declaration of
the Director of Strategic Planning and Information for DISA explains that
he concluded--despite the ongoing procurement--that DISA should continue
working with the technical organization here if at all possible, and that
there was a value to the agency in its continued collaboration with AFCEA
on this conference. Agency Rebuttal, attach. 4, Declaration of DISA
Director of Strategic Planning at 1. He also explains that there was no
effort here to abuse the procurement process and that the concessions
described in his message were matters first raised with AFCEA during the
2007 conference. In addition, agency personnel involved in the procurement
process also provided declarations explaining that they were acting in
good faith, and had every expectation that they would be awarding a
contract for this effort. Agency Rebuttal, attach. 1, 2 and 3. In short,
we see no basis to question these representations, or the Director's
determination, made in apparent good-faith, that co-sponsoring these
conferences with AFCEA instead of contracting with a vendor to provide
conference planning support services would be in the government's best
interest.
The protester also disagrees with the agency's description of its role as
a co-sponsor of the conference and maintains that DISA is the sole sponsor
of the event, and ultimately directs all facets of the conference. The
protester contends that in circumstances such as these, the JER requires
the agency to follow normal acquisition procedures to acquire support
services. DOD 5500.7-R, sect. 3.206 (c). We do not agree. The record shows
that the MOA between DISA and AFCEA for the 2007 conference provides for
the sharing of the responsibility of planning the conference to include
the scope, theme, agenda and acquiring speakers which is consistent with
the JER requirements for co-sponsorship of an event. DOD 5500.7-R, sect.
3.206. The agency states that it plans to complete a similar agreement for
the 2009, 2010, and 2011 conferences as well. On this record we have no
basis to question the co-sponsorship agreement.[2]
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] Although the agency solicited quotes from FSS vendors, it sought
submission of what were essentially proposals, and it anticipated a
full-blown evaluation of these quote/proposals in four areas. There is
little basis to distinguish the agency's actions during this procurement
from the actions it would have used in conducting a standard negotiated
procurement using the procedures described in Federal Acquisition
Regulation part 15.
[2] The protester argues that the 2007 co-sponsorship agreement between
the agency and AFCEA violated the JER in that the agency improperly agreed
in the agreement to assume responsibility for non-recoverable costs up to
a minimum of $100,000 that AFCEA might have incurred should DISA cancel
the conference. The protester contends that this violates the JER
provision that any sponsorship agreement contain a disclaimer of
government liability should the agency reduce its level of participation.
The protester maintains that if the new agreement contains this language,
the arrangement would violate this JER provision as well as other
regulations. The 2007 MOA between DISA and AFCEA involves a conference
period that is not covered by the instant RFQ and therefore not an issue
in this protest. Moreover, the agency reports that it is in the process of
completing the necessary requirements for co-sponsoring the relevant
conferences with AFCEA and merely provided the 2007 MOA to demonstrate the
relationship and shared responsibilities between the two organizations.